DCIT, CHENNAI V. S.Giridharan, CHENNAI

ITA 2951/CHNY/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8899 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 23-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIDYA
• Assessee Lawyers: LAKSHMINARAYANAN
• Keywords: Related party transaction; Capital asset; Business income; Cost of acquisition
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . . . , . , & BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2951/MDS/2014 ( / ASSESSMENT YEAR: 2008-09) THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-2(1), CHENNAI-34. VS MR.S.GIRIDHARAN, C/O. M/S.EDSERV SOFT SYSTEMS LTD. NEW NO.50 (OLD 72) ARYA GOWDA ROAD, WEST MAMBALAM, CHENNAI-33. PAN:AAGPG2646E ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MS. S.VIDYA, C.A. /RESPONDENT BY : MR. LAKSHMINARAYANAN, JCIT /DATE OF HEARING : 23 RD MAY, 2016 /DATE OF PRONOUNCEMENT : 1 ST AUGUST, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM: THIS APPEAL IS FILED BY THE REVENUE AGGRIEVED BY TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- II, CHENNAI DATED 16.07.2014 IN ITA NO.438/13-14 PA SSED UNDER SECTION 143(3) R.W.S. 250(6) OF THE ACT. 2. THE REVENUE HAS RAISED SEVERAL GROUNDS IN ITS AP PEAL, HOWEVER THE CRUX OF THE ISSUE IS AS FOLLOWS:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDITION OF `90,00,000/- WHICH WAS ASSESSED AS BUSINESS RECEIPTS UNDER SECTION 28(1)(VA) OF THE ACT BY THE LEARNED ASSESSING OFFI CER AS AGAINST NIL SHORT TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE. 2 ITA NO.2951/MDS/2014 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL, DESIGNATED DIRECTOR OF M/S. EDSERV SOFT SYSTEMS LTD., FILED HIS RETURN OF INCOME FOR THE ASSESSMEN T YEAR 2008- 09 ON 20.03.2009 ADMITTING INCOME OF `17,33,750/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS CO MPLETED UNDER SECTION 143 (3) OF THE ACT ON 21.12.2010 BY M AKING CERTAIN ADDITIONS/DISALLOWANCES. ON APPEAL, THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE AD DITION OF `90,00,000/- WHICH WAS TREATED AS BUSINESS INCOM E UNDER SECTION 28(1)(VA) OF THE ACT BY THE LEARNED ASSESSI NG OFFICER AS AGAINST THE NIL SHORT TERM CAPITAL GAINS CLAIM ED BY THE ASSESSEE. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE LEARNED ASSESSING OFFICER THAT THE ASSESSEE HAD CLAIMED NIL CAPITAL GAIN AS DETAILED BELOW:- I) SALE OF SHARES ON 27.03.2008 : `90,00,000 II) PURCHASE OF THE SAME SHARES ON 29.09.2007 : ` 90,00,000 SHORT TERM CAPITAL GAIN : ` NIL_____ 3 ITA NO.2951/MDS/2014 IT WAS EXPLAINED BY THE ASSESSEE THAT HE HAD PURCHA SED A PORTION OF THE BUSINESS OF M/S. ONSPEC TECHNOLOGY SOLUTIONS PVT. LTD., ALONG WITH THE ASSETS AND LIABILITIES OF THAT PORTION OF THE BUSINESS IN HIS NAME FOR AGGREGATE SALE CONSIDE RATION OF `90,00,000/-. IT WAS FURTHER EXPLAINED THAT THE ASS ESSEE APART FROM PAYING CERTAIN AMOUNT TO THE SHAREHOLDERS OF M /S. ONSPEC TECHNOLOGY SOLUTIONS PVT. LTD., HAD ALSO AGR EED TO PAY THE OVERDRAFT BALANCE OF M/S. ONSPEC TECHNOLOGY SOLUTIONS PVT. LTD WITH VIJAYA BANK AND ITS OUTSTAN DING EMPLOYEES PAYMENTS ETC., THUS AGGREGATE PURCHASE CONSIDERATION WORKED OUT TO `90,00,000/-. THEREAFTE R ON 27.03.2008, THE ASSESSEE HAD SOLD HIS BUSINESS TO M/S.LAMBENT SOFTSYSTEMS PVT.LTD., FOR SALE CONSIDER ATION OF ` 90,00,000/-. THUS, THE SHORT TERM CAPITAL GAIN WAS WORKED OUT BY THE ASSESSEE AS NIL. HOWEVER, THE LEARNED ASSESS ING OFFICER OPINED THAT THERE WAS NO PURCHASE TRANSACTI ON ON THE EARLIER OCCASION AND THE PRESENT TRANSACTION WAS ON LY RELATED TO TRANSFER OF HIS RIGHT TO DO BUSINESS IN THE SAME LINE FOR A PERIOD FIVE YEARS. THUS THE LEARNED ASSESSING OFFI CER DISREGARDING THE PURCHASE CONSIDERATION PAID BY THE 4 ITA NO.2951/MDS/2014 ASSESSEE FOR THE PORTION OF THE BUSINESS OF `90,00, 000/-, TREATED THE ENTIRE SALE CONSIDERATION RECEIVES AS B USINESS RECEIPT UNDER SECTION 28(1)(VA) OF THE ACT. 5. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) AFTER EXAMINING THE ISSUE IN DETAIL ARRI VED AT THE CONCLUSION THAT THE ASSESSEE HAD PAID THE PURCHASE CONSIDERATION OF ` 90,00,000/- ON 29.09.2007 FOR AC QUIRING THE PORTION OF THE BUSINESS WHICH WAS SUBSEQUENTLY SOLD ON 27.03.2008 FOR THE SAME AMOUNT AND THEREFORE, ALLOW ED THE APPEAL OF THE ASSESSEE. THE RELEVANT PORTION OF TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS REPRODUCED HEREIN BELOW:- I HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS CAREFULLY. IN THE PRESENT CASE, THE ASSESSEE'S CLAIM IS THAT HE HAS PURCHASED BUSINESS FROM M/S. ONSPEC TECHNOLOGY P LTD ALONG WITH ASSETS AND LIABILITIES FOR A TOTAL CONSIDERATION OF RS.9,00,000/- IN 2006-07 AND SOLD THE SAME TO M/S. LAMBENT SOFTSYSTEMS P LTD, IN FY 2007-08 FOR RS.90 LAKHS, MAKING NO PROFITS OR GAINS IN THE TRANSACTION. IN RELATION TO THIS CLAIM THE ASSESSEE FURNISHED THE MOU ENTERED WITH M/S. ONSPEC TECHNOLGY P LTD ON 19.03.2007 FOR PURCHASING THE BUSINESS ALONG WITH ASSETS AND LIABILITIES FOR A TOTAL CONSIDERATION OF RS.9,00,000/-. BUT THE ASSESSING OFFICER DID NOT ACCEPT THE SAME. THE ASSESSING OFFICER REJECTED THIS MOU BASICALLY FOR TWO REASONS, I.E. (I) THAT THE ASSESSEE HAS NOT REFLECTED THE PURCHASE OF THIS BUSINESS IN HIS RETURN OF INCOME FLIED FOR A.Y.2007-08, AND (II) 5 ITA NO.2951/MDS/2014 THAT THE ASSESSEE HAS NOT ACTED UPON THE MOU. THESE TWO OBSERVATIONS OF THE ASSESSING OFFICER ARE NOT CORRECT. SINCE THE ASSESSEE IS AN INDIVIDUAL WITH NO BUSINESS INCOME, HAS NOT ENCLOSED ANY BALANCE SHEET OR STATEMENT OF AFFAIRS (AS ON 31.03.2007) ALONG WITH HIS RETURN OF INCOME FILED FOR A.Y.2007-08, AS THESE WERE NOT MANDATORY. HENCE THERE WAS NO OCCASION FOR THE ASSESSEE TO DISCLOSE THE DETAILS OF PURCHASE OF BUSINESS IN THE RETURN OF INCOME FILED FOR A.Y.2007-08. 4.2.3 THE ASSESSEE, CONSEQUENT TO THE ABOVE MOU HAS ACTED UPON THE CONTENTS OF AS PER THE MOU. THE ASSESSEE, AS PER THE M 0U HAD UNDERTAKEN SEVERAL LIABILITIES OF M/S. ON SPEC TECHNOLOGY P LTD PERTAINING TO THE BUSINESS UNDER TRANSFER - LIKE VIJAYA BANK OF) (RS.17,00,000/-), CREDITORS ETC. SUBSEQUENTLY, THE ASSESSEE HAS CLEARED THE SAID LIABILITIES, OF) AMOUNT ETC. THESE FACTS ARE CLEARLY AVAILABLE FROM THE ASSESSEE'S BANK EXTRACTS. THESE FACTS CLEARLY ESTABLISH THAT THE ASSESSEE HAD ACTED UPON THE ABOVE MOU ENTERED WITH M/ S. ONSPEC TECHNOLGY P LTD. FURTHER, AS COULD BE SEEN FROM THE ABOVE MOU, THE ASSESSEE GETS THE RIGHT OVER THE SOFTWARE BRAND 'ELMAQ.EDU' DEVELOPED BY THE COMPANY ALONG WITH VARIOUS COURSE CONTENTS OF THE SOFTWARE. 4.2.4 SUBSEQUENTLY, THE ASSESSEE, VIDE 'BUSINESS PURCHASE AGREEMENT' DATED 29.09.2017, TRANSFERRED THE ABOVE BUSINESS TO M/S. LAMBENT SOFTSYSTEMS PRIVATE LIMITED (PRESENTLY KNOWN AS EDSERV SOFT SYSTEMS LIMITED) FOR A SALE CONSIDERATION OF RS.90,00,000/-. THE CONSIDERATION WAS RECEIVED IN THE FORM OF DEBENTURES, WHICH WERE IN TURN SOLD ON 23.03.2008 FOR RS.90,00,000/-. EVEN THE M/S. LAMBENT SOFTSYSTEMS PRIVATE LIMITED (EDSERV SOFT SYSTEMS LIMITED) HAS SHOWN THIS PURCHASE IN ITS ANNUAL STATEMENTS, BY INCORPORATING THE VARIOUS ITEMS INCLUDED IN THE TRANSFER IN THE RESPECTIVE HEADS OF THE BALANCE SHEET AND P&L ACCOUNT. FOR EXAMPLE, THE COURSE CONTENT WAS DEBITED IN THE P&L ACCOUNT AND THE CREDITORS ETC ARE MERGED WITH SUNDRY CREDITORS OF THE COMPANY. EVEN THE DIRECTOR'S REPORT IN THE ANNUAL REPORT OF 6 ITA NO.2951/MDS/2014 M/ S. EDSERV SOFTSYSTEMS LTD FOR FINANCIAL YEAR 2007-08, CLEARLY CONTAINED THAT THE COMPANY ACQUIRED THE BUSINESS OF ELMAQ DIVISION FROM SHRI GIRIDHARAN FOR RS.90 LAKHS AND THE SAME FACT IS ALSO CONTAINED IN THE RELATED PARTY TRANSACTIONS IN THE NOTES TO THE ACCOUNTS. THE RELEVANT PORTION OF THE DIRECTOR'S REPORT IS AS UNDER: FURTHER, YOUR COMPANY ON ITS EXPANSION ACTIVITY ENTERED INTO AGREEMENTS WITH FRANCHISEE PARTNERS THROUGHOUT INDIA AND THE COMPANY HAD RECEIVED TREMENDOUS RESPONSE. THE COMPANY HAS ENTERED INTO A BUSINESS PURCHASE AGREEMENT ON 29.09.2007 TO TAKE OVER THE BUSINESS ALONG WITH THE ASSETS AND LIABILITIES BELONGING TO MR. S. GIRIDHARAN FOR A CONSIDERATION OF 90 LACS, BY ISSUE OF FULLY CONVERTIBLE DEBENTURES FOR ACQUISITION OF ELMAQ DIVISION. 4.2.5 IT IS ALSO IMPORTANT TO MENTION HERE THAT SHRI GIRIGHARAN WAS NOT DOING ANY BUSINESS ON HIS OWN, AS COULD BE SEEN FROM THE ASSESSEE'S RETURN OF INCOME. THEREFORE, BUT FOR ACQUISITION OF A BUSINESS, IT WOULD NOT HAVE BEEN POSSIBLE FOR THE SALE OF BUSINESS INCLUDING THE COURSE CONTENTS, BRAND NAME OF ELMAQ, LIABILITIES ETC. IN OTHER WORDS, IF THE SALE OF THE BUSINESS IS TO BE ACCEPTED, ITS CORRESPONDING PURCHASE IS ALSO TO BE ACCEPTED. THUS, UNLESS THERE IS PURCHASE OF THE BUSINESS BY THE ASSESSEE FROM M / S. ONSPEC TECHNOLGY P LTD, IT WOULDN'T HAVE BEEN POSSIBLE FOR THE ASSESSEE TO SELL THE SAME TO M/S. EDSERV SOFTSYSTEMS LTD IN THE FINANCIAL YEAR 2007-08. 4.2.6 THE OTHER OBSERVATION OF THE ASSESSING OFFICER IS THAT THE TRANSFER OF BUSINESS TO M/S. EDSERV SOFTSYSTEMS LTD FOR RS.90 LAKHS IS NOTHING BUT A NON-COMPETE FEE RECEIVED. NO DOUBT THERE IS A 'NON-COMPETE' CLAUSE IN THE BUSINESS PURCHASE AGREEMENT WITH M/S. EDSERV SOFTSYSTEMS LTD. BUT THIS DOESN'T MEAN THAT THE AMOUNT WAS PAID FOR 'NON-COMPETITION' ONLY. WHENEVER, A BUSINESS IS TRANSFERRED 'AS A GOING CONCERN', THERE WILL ALWAYS BE A GENERAL CLAUSE FOR NON-COMPETITION FOR SOME PERIOD. WHAT IS REQUIRED TO BE SEEN IN EACH CASE IS WHETHER THE NON-COMPETE CLAUSE IS INCIDENTAL FOR THE TRANSFER OF THE BUSINESS OR IT WAS PURELY FOR NON- 7 ITA NO.2951/MDS/2014 COMPETITION. IN THE INSTANT CASE, AS COULD BE SEEN FROM THE AGREEMENT, THE MAIN PURPOSE OF THE PAYMENT WAS FOR ACQUIRING THE BUSINESS OF 'ELMAQ DIVISION' FROM THE ASSESSEE, AS A GOING BUSINESS. EVEN THE ENTIRE CONSIDERATION OF RS.90 LAKHS WAS FIXED FOR VARIOUS ITEMS OF THE ASSETS/ITEMS OF THE BUSINESS AND NOTHING WAS FIXED FOR NON- COMPETITION. THEREFORE THE NON-COMPETE CLAUSE IS ONLY AN INCIDENTAL CLAUSE IN THE TRANSFER OF THE BUSINESS AS A WHOLE. 4.2.7 IT IS ALSO IMPORTANT TO MENTION HERE THAT THE TRANSFER OF VARIOUS ASSETS AND LIABILITIES MENTIONED IN THE TRANSFER AGREEMENT WERE TAKEN OVER THE M/S. EDSERV SOFTSYSTEMS LTD AND NECESSARY BENEFITS/ DEDUCTIONS WERE ALSO CLAIMED IN THE RETURN OF INCOME FILED BY M/S. EDSERV SOFTSYSTEMS LTD FOR A.Y.2008-09, LIKE THE COURSE CONTENT VALUE OF RS.55,00,000/- DEBITED IN THE P&L ACCOUNT. THE REVENUE ALSO ACCEPTED THESE CLAIMS. THIS ALSO PROVES THAT THE TRANSFER OF VARIOUS ASSETS/ITEMS, AS MENTIONED IN THE TRANSFER AGREEMENT, IS GENUINE. IN SUCH A CASE, THE CONSIDERATION OF RS.90 LAKHS IS ACTUALLY FOR TH E ASSETS/ITEMS INCLUDED IN THE TRANSFER. THEREFORE, THE ASSESSING OFFICER'S CONTENTION THAT THE PAYMENT WAS OF 'NON-COMPETE FEE' IS NOT JUSTIFIED. 4.2.8 THE NEXT OBSERVATION OF THE ASSESSING OFFICER IS THAT THE ASSESSEE WAS CHANGING HIS STANDS WHILE EXPLAINING THE TRANSACTION. AS PER THE ASSESSING OFFICER, THE ASSESSEE HAS GIVEN THREE CONTRADICTORY EXPLANATIONS IN SUPPORT OF HIS CLAIM OF SHORT TERM CAPITAL GAINS. THIS OBSERVATION OF THE ASSESSING OFFICER IS ALSO NOT CORRECT. THOUGH EVERYTHING IS PERTAINING TO THE PURCHASE AND TRANSFER OF THE BUSINESS, THERE WERE THREE CLEAR STAGES IN THE PROCESS, AND EACH OF THE STAGE CAN BE CONSIDERED AS A SEPARATE OR INDEPENDENT TRANSACTION, AS UNDER: (I) ASSESSEE'S PURCHASE OF BUSINESS FROM M/S. ONSPEC TECHNOLOGY P LTD FOR RS.90 LAKHS ON 13.03.2007 (II) ASSESSEE'S SALE OF THE SAID BUSINESS TO M/ S. EDSERV SOFTSYSTEMS LTD FOR RS.90 LAKHS ON 29.09.2007 AND RECEIVING THE CONSIDERATION IN THE FORM OF DEBENTURES 8 ITA NO.2951/MDS/2014 (III) SALE OF THE SAID DEBENTURES ON 27.03.2008 FOR RS.90 LAKHS. THE ASSESSEE HAS ONLY TRIED TO EXPLAIN THESE THREE TRANSACTIONS INDEPENDENTLY AT DIFFERENT STAGES BEFORE THE ASSESSING OFFICER. HOWEVER THE ASSESSING OFFICER TOOK THE SAME AS CONTRADICTING EXPLANATIONS AND CHANGE OF STANDS. IF THE ASSESSEE'S EXPLANATIONS OFFERED AT VARIOUS STAGES ARE ANALYSED THESE FACTS CAN BE CLEARLY SEEN. THEREFORE NO ADVERSE INFERENCE CAN BE DRAWN FROM THE ABOVE OBSERVATION OF THE ASSESSING OFFICER. 4.2.9 THE LAST OBSERVATION OF THE ASSESSING OFFICER IS THAT THE ASSESSEE FAILED PRODUCE SHRI GHOSE, ONE OF THE DIRECTORS OF M/S.ONSPEC TECHNOLGY P LTD FOR CROSS EXAMINATION. AS EXPLAINED BY THE ASSESSEE, SHRI GHOSE LEFT THE COUNTRY AND RESIDING IN USA. HENCE HE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER. 4.2.10 IN VIEW OF THE ABOVE REASONS, THE MOU ENTERED BETWEEN THE ASSESSEE AND M/S. ONSPEC TECHNOLGY P LTD ON 13.03.2007, WAS ACTUALLY HONOURED BY THE ASSESSEE AND THUS THE ASSESSEE'S PURCHASE OF BUSINESS FROM M/ S. ONSPEC TECHNOLGY P LTD FOR RS.90 LAKHS IN 2006- 07 IS TO BE CONSIDERED AS GENUINE. SUBSEQUENTLY, THE SAID BUSINESS WAS SOLD TO M/ S. EDSERV SOFTSYSTEMS LMITED FOR RS.90 LAKHS ON 29.09.2007 AND RECEIVED THE CONSIDERATION IN THE FORM OF DEBENTURES. THE DEBENTURES WERE IN-TURN REDEEMED (SOLD) ON 27.03.2008 FOR RS.90 LAKHS. THE ASSESSEE, IN THE PROCESS, HAS NOT MADE ANY PROFITS OR GAINS. IN ANY CASE, SINCE THE ASSESSEE HAS PURCHASED THE BUSINESS AS A GOING CONCERN AND SUBSEQUENTLY SOLD THE SAME TO ANOTHER PERSON, THE SAME CONSTITUTES A CAPITAL ASSET IN THE HANDS OF THE ASSESSEE AND LIABLE FOR 'CAPITAL GAINS'. SINCE THE LENGTH OF HOLDING WAS LESS THAN 3 YEARS, IT IS LIABLE FOR SHORT TERM CAPITAL GAINS. THE COMPUTATION OF CAPITAL GAINS, WHICH IS AGAIN IN TWO STAGES, IS AS UNDER: STAGE-I: SALE OF BUSINESS ON 29.09.2007: RS.90 ,00,000* LESS: PURCHASE COST OF BUSINESS (13.03.2007) : RS.9 0,00,000 SHORT TERM CAPITAL GAINS : RS. NIL * CONSIDERATION WAS RECEIVED IN THE FORM OF DEBENTURE S STAGE-II: 9 ITA NO.2951/MDS/2014 SALE OF DEBENTURES ON 27.03.2008 `9 0,00,000 LESS: COST OF DEBENTURES ( 29.09.2007) `90,00,000 SHORT TERM CAPITAL GAINS ` NIL 4.2.11 THUS, THE ASSESSEE HAS RIGHTLY COMPUTED SHORT TERM CAPITAL GAINS OF RS.NIL ON THE TRANSFER OF BUSINESS TO M/S. EDSERV SOFTSYSTEMS LIMITED. THEREFORE, THE ASSESSING OFFICER IS NOT JUSTIFIED IN REJECTING THE ASSESSEE'S CLAIM OF SHORT TERM CAPITAL GAINS AND ASSESSING THE SALE PROCEEDS AS 'NON-COMPETE' U/S.28(I)(VA) OF THE ACT. THE ADDITION OF RS.90,00,000/- MADE BY THE ASSESSING OFFICER IS DELETED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE HEAVILY RELIED ON THE ORDERS OF THE LEARNED ASSESSING OFFICER AND ARGUED IN SUPPORT OF THE SAME WHILE AS THE LEARNED AUTHORIZED REPRESENTATIVE RELIED UPON THE FINDINGS OF THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) AND PLEADED TH AT THE ORDER OF THE LEARNED CIT(A) MAY BE CONFIRMED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM TH E FACTS, OF THE CASE WE FIND THAT THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) HAS THOROUGHLY EXAMINED THE ISSUE AND MADE A CLEAR CUT FINDING THAT THE ASSESSEE HAD PAID `90, 00,000/- FOR ACQUIRING THE BUSINESS WHICH HE HAS SUBSEQUENTLY SO LD DURING THE SUCCEEDING ASSESSMENT YEAR FOR THE SAME PRICE. IN 10 ITA NO.2951/MDS/2014 SUCH CIRCUMSTANCES, OBVIOUSLY THE SHORT TERM CAPITA L GAIN WILL BE NIL. SINCE THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) HAS EXAMINED THESE FACTS AND HAS GIVEN A CLEAR FINDING, WE DO NOT FIND IT NECESSARY TO INTERFERE W ITH HIS ORDER. IT IS ORDERED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 1 ST AUGUST, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 1 ST AUGUST, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF .